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U.S. Department of Education: Promoting Educational Excellence for all Americans

Local educational agency (Sec. 300.28)

Comment: One commenter suggested revising Sec. 300.28 to ensure that all responsibilities and rights attributed to an LEA apply to an ESA.

Discussion: We believe that the provisions in Sec. 300.12 and Sec. 300.28 are clear that ESAs have full responsibilities and rights as LEAs. We, therefore, decline to revise Sec. 300.28.

Changes: None.

Comment: None.

Discussion: Through its review of charter schools' access to Federal funding, it has come to the Department's attention that additional guidance is needed regarding whether charter schools that are established as their own LEAs must be nonprofit entities in order to meet the definition of LEA in Sec. 300.28. The definition of LEA in Sec. 300.28(b)(2) specifically includes a public charter school that is established as an LEA under State law and that exercises administrative control or direction of, or performs a service function for, itself. For purposes of the Act, the definitions of charter school, elementary school, and secondary school in Sec. Sec. 300.7, 300.13, and 300.36, respectively, require that a public elementary or secondary charter school be a nonprofit entity. Therefore, a public elementary or secondary charter school established as its own LEA under State law, also must be a nonprofit entity. Although these regulations do not specifically define nonprofit, the definition in 34 CFR Sec. 77.1 applies to these regulations. In order to eliminate any confusion on this issue, we will revise the definition of LEA to reflect that a public elementary or secondary charter school that is established as its own LEA under State law must be a nonprofit entity.

Changes: For clarity, we have revised Sec. 300.28(b)(2) by inserting the term "nonprofit" before "charter school that is established as an LEA under State law."

Comment: One commenter stated that Sec. 300.28(c) is in error from a technical drafting perspective because it does not follow the statutory language in section 602(19)(C) of the Act. The commenter also suggested adding a definition of "BIA funded school," rather than adding a new definition of LEA related to BIA funded schools.

Discussion: We agree that Sec. 300.28(c) does not accurately reflect the statutory language in section 602(19)(C) of the Act and, as written, could be interpreted as defining BIA funded schools. This was not our intent. Rather, the intent was to include "BIA funded schools" in the definition of LEA, consistent with section 602(19)(C) of the Act.

In order to correct the technical drafting error, we will change Sec. 300.28(c) to accurately reflect section 602(19)(C) of the Act. We decline to add a definition of "BIA funded schools." The Act does not define this term and the Department does not believe that it is necessary to define the term.

Changes: In order to correct a technical drafting error, Sec. 300.28(c) has been revised to be consistent with statutory language.